Opinion
07-23-00143-CR
05-30-2024
JOE BOB DAVIS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish.
On Appeal from the 31st District Court Gray County, Texas Trial Court No. 11847, Honorable Steven R. Emmert, Presiding
Before QUINN, C.J., and PARKER and DOSS, JJ.
MEMORANDUM OPINION
BRIAN QUINN, CHIEF JUSTICE
To convict Joe Bob Davis of the charged offense, the State was required to prove not only that he possessed a controlled substance but also that he did so with the intent to deliver. The evidence proffered to establish the element of intent to deliver consisted of the amount of methamphetamine, i.e., either 14 or 19 grams, an opinion by the investigating officer that such an amount evinces more than possessing for personal use, and testimony by the investigating officer that "I had received information that Mr. Davis and his brother were involved in trafficking narcotics to McLean." Appellant objected to the admission of the latter under Rules 403 and 404 of the Texas Rules of Evidence. The trial court initially decided to exclude the quoted testimony, reconsidered its decision, and ultimately overruled the objection after much debate. Then, a jury found appellant guilty of the charged offense, which resulted in the trial court entering judgment convicting him of same. Through this appeal, appellant questions the accuracy of the trial court's evidentiary ruling. We reverse and remand.
Background
A deputy purportedly learned that appellant and his brother were involved in trafficking narcotics. Thereafter, he obtained information indicating the vehicle they drove had traveled between Amarillo and McLean several times. As a result, he entered an alert seeking notification from other law enforcement members who may encounter appellant during his travels outside Gray County. Such an alert came in August 2021. Responding to it, the deputy and another officer awaited at a particular location the vehicle's return to Gray County, witnessed the commission of a traffic violation, and conducted a traffic stop.
Appellant sat as a passenger while the driver consented to a search of the car. No narcotics or drug paraphernalia were found inside it. However, as appellant stood outside on the side of the road, a small bag fell from his shorts. Deputies retrieved the item only to discover it contained from 14 to 19 grams of methamphetamine.
Discussion
For purposes of this appeal, we assume, arguendo, that the statement in question was relevant and admissible under Rule 404(b)(1) and (2). See Tex. R. Evid. 404(b)(1)-(2) (stating that evidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with the character, but it may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, or the like). Instead, we focus on the Rule 403 objection.
Per Rule 403, otherwise admissible evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403; Sarabia v. State, 227 S.W.3d 320, 323 (Tex. App.-Fort Worth 2007, pet. ref'd) (evidence admissible under Rule 404(b) and other rules may be excluded under Rule 403). Rulings applying it are reviewed under the standard of abused discretion. Perkins v. State, 664 S.W.3d 209, 216-17 (Tex. Crim. App. 2022). That standard is deferential in nature, and under it, appellate courts must view the evidence in the light most favorable to the trial court's ruling. State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim. App. 2021). The standard also requires us to afford almost complete deference to the trial court's determination of historical fact when founded upon issues of credibility and demeanor. Id. However, such deference is withheld in mixed questions of law and fact when the resolution of same is not dependent on matters of credibility and demeanor; in those situations, we review them de novo. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). So too must we avoid merely substituting our judgment for that of the trial court and affirm if the ruling falls within the zone of disagreement. Lerma, 639 S.W.3d at 68. Nevertheless, abused discretion does arise if 1) the trial court acted arbitrarily or unreasonably or without reference to any guiding rules and principles or 2) no reasonable view of the record could support its ruling. Id.
Returning to Rule 403, our task begins with presuming that the probative value of the evidence is not substantially outweighed by other factors. Martinez v. State, No. 07-08-0489-CR, 2009 Tex.App. LEXIS 7207, at *6-7 (Tex. App.-Amarillo Sept. 11, 2009, no pet.) (mem. op., not designated for publication). Moreover, the trial court conducts a balancing test when entertaining an objection based on it. The factors balanced are 1) the inherent probative force of the proffered evidence, 2) the proponent's need for it, 3) any tendency for the evidence to suggest a decision on an improper basis, 4) any tendency for the evidence to confuse or distract the jury from the main issue, 5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and 6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Id. With the foregoing in mind, we consider the issue at bar.
To reiterate, the evidence consisted of a deputy providing evidence to illustrate appellant's intent viz-a-viz his possession of the methamphetamine. By then the jury heard that 1) large or significant amounts of a controlled substance may indicate more than possession for mere personal use and 2) the quantum dropped by appellant suggested more than mere personal use. Later, the deputy who proffered that evidence vacillated under cross-examination. The 14 to 19 grams dropped by appellant were not necessarily significant, in his view. He further iterated not only that other items often would be found indicating the individual was selling the drug, such as scales, but also that they were generally found at the locale from which sales were made. The deputy discovered none in the car in which appellant rode, however. That led the State to ask the deputy: "if you could, tell this jury how you first became involved in this investigation." The trial court already having overruled appellant's 403 and 404 objections to the answer, the deputy responded: "I had received information that Mr. Davis and his brother were involved in trafficking narcotics to McLean." That additional evidence establishing intent to deliver was needed cannot be doubted. So, it can be said the second factor mentioned above favored the State, assuming the testimony had actual probative value.
Yet, what the jury heard was potentially baseless hearsay. The trial court realized its nature as hearsay when stating: "[w]ell, wouldn't he [the deputy] be relying on what he was told? He'd be relying on what he was told, which is hearsay." Furthermore, the source of the hearsay was not revealed, nor were other circumstances illustrating the information received or its source were accurate or reliable, respectively. The jury simply heard the deputy say he had received information about appellant dealing drugs, which information may have been nothing more than rumor or speculation. Moreover, this potential rumor was not proffered as mere context explaining why appellant came under suspicion or why law enforcement actually desired to stop him on the highway. See Denmon v. State, No. 03-12-00347-CR, 2014 Tex.App. LEXIS 2180, at *8-9 (Tex. App.- Austin Feb. 27, 2014, pet. ref'd.) (mem. op., not designated for publication) (observing that officer's testimony was proffered to explain the course of the investigation and how appellant became a suspect, which was an acceptable, non-hearsay purpose for admitting an out-of-court statement). The possible rumor was offered and admitted as actual proof illustrating intent to deliver. Being so tendered through law enforcement officials who later found appellant in possession of dope also could well enhance its believability. It is not unreasonable to conceive of a juror believing that appellant intended to traffic in drugs (i.e., deliver) when law enforcement said they heard he was in that business and then found him with drugs. These circumstances suggest the great weight to which jurors could assign to the potentially unfounded hearsay and illustrate the risk posed in the jury finding guilt based on potential rumor. And, though it took little time to present the evidence to the jury, resolution of the debate took no small moment in time. The topic was twice discussed and entailed extensive discussion among the State, appellant's counsel, and the trial court.
Indeed, when asked outside the jury's presence about the "information received," the deputy did not mention whether he obtained it through personal observation, investigation, an informant, or merely a 911 call from some unknown person with a grudge. He simply said: "[t]he information that I had was just that they were involved in selling narcotics from the residence. I was also told that they were -- him and his brother, at the time is who I was told about, but that they were attempting to sell a rifle and at one point that they had approximately a pound of meth."
Rule 403 does not require proof of actual "unfair prejudice" or the like, but merely "a danger of" same. And, though the "danger" must substantially outweigh the probative value of the intended evidence, we find it did here. Potential rumor has little probative value. See, e.g., Woods v. State, 533 S.W.2d 16, 20 (Tex. Crim. App. 1976) (showing of reliability is necessary to prevent searches based on idle rumor as rumor has no probative value); State v. Ruiz, No. 05-99-00639-CR, 2001 Tex.App. LEXIS 580, at *5 (Tex. App.- Dallas Jan. 30, 2001, pet. ref'd) (mem. op., not designated for publication) (testimony based solely on speculation lacks probative value and is therefore irrelevant and inadmissible). On the other hand, conviction based on it presents a grave risk of undue prejudice; it tends to have an adverse effect (i.e., conviction based on innuendo) far beyond proving intent to deliver. See Oakley v. State, No. 07-21-00133-CR, 2022 Tex.App. LEXIS 6994, at *7-8 (Tex. App.-Amarillo Sept. 16, 2022, pet. ref'd) (mem. op., not designated for publication) (stating that evidence is unfairly prejudicial when it tends to have some adverse effect upon a defendant beyond proving the fact or issue that justified its admission into evidence). And, the danger of an improper conviction caused by the testimony in question substantially outweighed its nominal probative value. Thus, we sustain appellant's issue and conclude the trial court abused its discretion in admitting the testimony in question.
That the error was harmful is rather clear. While other testimony appeared of record which supported a finding of intent to deliver, defense counsel succeeded in having the witness who proffered it question its value. So too did the State direct the jury's attention to the testimony during its closing argument. These circumstances lead us to conclude that the error affected appellant's substantial rights, one of which is the right to be convicted only upon evidence of guilt, not rumor. Thus, we reverse the judgment of the trial court and remand the cause for further proceedings.